The U.S. Court of Appeals for the Federal Circuit has recently reviewed multiple cases related to the award of attorney fees. In a series of three precedential decisions, the Federal Circuit examined whether each case was exceptional under 35 U.S.C. §285, such that an award of attorney fees was merited, in the wake of the U.S. Supreme Court’s decision in Octane Fitness v. ICON Health & Fitness, ___ U.S. ___, 134 S. Ct. 2134 (2014). In Octane Fitness, the Supreme Court found that the Federal Circuit’s standard for an exceptional case was too rigorous and that an exceptional case “is simply one that stands out from others with respect to the substantive strength of a party’s litigating positions (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” This article addresses each of these decisions.
‘Rothschild’
In Rothschild Connected Devices Innovations v. Guardian Prot. Servs., 2016-2521, Slip Op. at 1, 13 (Fed. Cir. June 5, 2017), the Federal Circuit reversed a district court decision, holding that the judge abused his discretion in not deeming the case exceptional and awarding attorney fees, and remanded the case for a calculation of attorney fees. ADS argued that the district court abused its discretion because: (1) “[it] failed to properly assess the weakness of Rothschild’s litigating position”; (2) “[it] failed to consider Rothschild’s willful ignorance of the prior art”; (3) “Rothschild engaged in vexatious litigation by bringing suit solely to extract a nuisance payment”; and (4) “[it] failed ‘to consider the totality of the circumstances’” by “improperly conflat[ing] the provisions of Rule 11 and relief under [§]285.” The Federal Circuit found that ADS’s last three arguments demonstrated an abuse of discretion, but did not address ADS’s first argument.
